Gyanendra Kumar vs Indian Overseas Bank And 4 Ors. on 21 May, 2018

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Allahabad High Court

Gyanendra Kumar vs Indian Overseas Bank And 4 Ors. on 21 May, 2018

1. This writ petition under Article 226 of the Constitution of India has come up at the instance of petitioner, Gyandendra Kumar, who was working as Assistant Manager in Indian Overseas Bank (hereinafter referred to as 'Bank') at its branch, Veterinary College, Mathura, and he has assailed order dated 30.05.2012 (annexure 17 to writ petition) passed by General Manager / Disciplinary Authority imposing punishment of dismissal in terms of Regulation 4 (J) of Indian Overseas Bank Officer Employees' (Discipline and Appeal) Regulations 1976 (hereinafter referred to as "Regulations 1976"). The aforesaid order further directs that period of suspension shall be treated as not spent on duty and petitioner shall not be entitled to any monetary or other benefits, other than amount of subsistence allowance already paid. Petitioner has further challenged appellate order dated 30.01.2013 passed by respondent-3 and Review order dated 17.05.2013 passed by respondent-4 Chairman and Managing Director/Revenue Authority of the Bank in review petition.

2. Facts in brief giving rise to present dispute are as under.

3. Petitioner was appointed as Probationary Officer in Bank on 15.10.2007. After completion of probation period, he was posted as Assistant Manager, Veterinary College Branch of the Bank at Mathura. At the relevant time one Promod Kumar Mahendra was posted as Senior Manager, and Gauri Sankar as Deputy Manager in the aforesaid branch. Senior Manager Sri Pramod Kumar Mahendra sent a complaint to Chief Regional Manager, Regional Office Jaipur, vide letter dated 06.09.2010 stating that some fraudulent transactions had taken place in the Branch, between February 2010 to August 2010, in different accounts, for a total amount of Rs. 5,00,000/-, approximately. It is also said that details examined by Senior Manager show that one of the staff of branch at the bank has used password of "Senior Manager" and "Manager", second line. Then he narrated modus operandi in the following manner:-

"We furnish below the modus operandi for your verification and investigation.

Date Description 20.08.2010 A representative of SB a/c 708 of Baldevpuri Housing Society visited the branch and asked for changes in signature of the authorized signatories as there was some change in the governing body of the society and handed over the papers to the undersigned. We asked him to complete the KYC formalities of the new signatories and handed over the papers to the Dy. Manager Mr. Gauri Shanker for doing the needful.

21.08.2010 Dy. Manager hold the request letter with him for doing the needful.

22.08.2010 Sunday Holiday.

23.08.2010 Assistant Manager Mr. Gyanendra Kumar on seeing the papers of SB 708 at the table of Mr. Gauri Shanker took them and said that he will do the needful.

24.08.2010 Holiday on account of Raksha Bandhan.

25.08.2010 Representative of SB 708 visited the branch and tendered the pass book for completion. On going through the entries after completion of the pass book he pointed out that following entries do not belong to their account and why these amounts have been debited/credited to their account.

Rs. 15000 on 28.04.2010 Rs. 30000 on 01.05.2010 Rs. 30000 on 03.07.2010 Rs. 60000 on 23.08.2010 The undersigned looked at the pass book and noticed that out of the above debits, a sum of Rs. 60000 is credited to the account on 23.08.2010. On verifying the lots it was found that the above entry has been passed by using the password of Senior Manager 1st line and Dy. Manager without their knowledge.

On verifying the records it is found that no voucher is available in the branch for transfer entry of Rs. 60000.

The undersigned satisfied the customer and requested him to wait till these entries are verified."

4. Senior Manager Bank then gave details of investigation made by him as under:-

"Since there was no connectivity in the branch till 2.00 pm approx on 23.08.2010 and undersigned who had to go out for some business promotion observed that the above entry was passed in his absence using his password at 05.02p.m.. I immediately suspected that some body in the branch is engaged with some malafied intentions and using the passwords of other officers.

I then started investigating into the matter by verifying the log entries and Lot entries of the various dates when the debit and credit transactions have taken place in the account. To my surprise I found that apart from the entries debited to the above mentioned SB a/c 708, there are some more entries to the debit of different accounts (operative and non operative and also overdue deposit accounts) have been passed on different dates by using my and Dy. Manager passwords. The amounts were credited to two accounts which were asked by the customers for closure. These two SB accounts viz, SB 4346 and SB 3861 were closed on two different dates but not deleted from the masters. The accounts were allowed to run with zero balances.

The amount so credited fraudulently to these accounts on different dates to the debit of inoperative/overdue deposit accounts has been withdrawn on different dates through ATMs of HDFC Bank, IDBI Bank, Andhra Bank, Corporation Bank and Axis Bank.

On 01.08.2010 and 18.08.2010 Rs 15000/- each has been withdrawn through IOB ATM also. I have collected the footage of CCTV recording of our ATM which is enclosed to this letter in a CD.

On going deep into the investigation I observed that Masters of these two accounts viz 4346 and 3861 were also modified and Insta Debit cards were issued by using the passwords of SCA Mr. H.S. Bharti, Dy. Manager Mr. Gauri Shankar and approved under my passwords. These ATM cards have been used for withdrawal from above mentioned ATM's."

5. Thereafter Senior Manager gave details in Chronological order, relating to S.B., accounts no. 4346 and his narration reads as under:-

"Details of the Incident in Chronological order about SB a/c 4346 through which fraudulent transactions have taken place are as under

25.01.10 Shri Nemichand a/c holder of SB a/c 4346 came to the branch with a request to close his account. On his written application Deputy Manager Mr. Gauri Shankar (Roll No. 13225) instructed for closure of the account. The entry is made by SCA Mr. H.S. Bharti (Roll No. 14185) and passed by Assistant Manager Mr. Gyanendra Kumar (Roll No. 38308). The balance at the time of closure of the account was Rs. 111292/- which has been paid to the customer as a result of which the balance became zero. However the account was not removed/deleted from the master by Mr. Gyanendra Kumar and allowed to run with 0 balances.

The undersigned was on leave on this date.

03.02.10 Insta Debit Card has been issued in same SB a/c 4346 and on verification we found that the card has been issued by using password of Mr. H.S. Bharti(14185) and Senior Manager Mr. Pramod Mahindra (Roll No. 35315). Though Mr. H.S. Bharti (who expired on 09.04.2010) was not at all conversant of such transactions as per my observation, his password was used. In fact the issuance of Insta debit card work has been assigned to Mr. Gyanendra Kumar, Roll No. 38308 Asst. Manager who is also in possession of all the unused and undelivered cards.

Surprisingly on verification we found that no records such as ATM card application form etc are available in the branch.

07.02.10 Due to non closure of account from the master an interest of Rs. 1623/- credited by the system in SB account no. 4346.

09.02.10 Following dormant/inoperative SB accounts have been closed and balance transferred to SB account 4346, SB 6916 Rs 95.00 SB 7679 Rs 166.00 SB 7703 Rs 1816.00 SB 7981 Rs 400.00 SB 8174 Rs 165.00 SB 7911 Rs 189.00 SB 7930 Rs 1083.00 Total credited to SB 4346 Rs 3914.00 These transactions have taken place at 10:05am and as per system records entered by 14185 and passed by 35315.

10.02.10 Rs 5000 and Rs 500 withdrawn from IOB ATM and got the card activated. The footage of these two transactions is not available.

13.02.10 Following dormant accounts have been transferred to SB 4346 SB 6807 Rs509.00 SB 6933 Rs341.00 SB 6857 Rs143.00 SB 6860 Rs59.00 Total amount credited Rs. 1132.00 at 10:02am and as per the system the entry has been made by 14185 and passed by 35315.

15.02.10 Following dormant accounts have been transferred to SB 4346 SB 6847 Rs449.00 SB 7765 Rs316.00 SB 7860 Rs119.00 SB 6981 Rs1117.00 Total amount credited Rs. 2001.00 at 10:07am and as per the system the entry is made by 14185 and passed by 35315.

As per branch records 14185 is on leave on this date.

Rs 3100 withdrawn from HDFC Bank ATM installed at Opposite Kachahari Mathura.

10.03.10 Dormant SB 10267 Rs 8507.00 transferred to SB 4346 by 13225 and approved by 35315 as per the system at 04:40pm Attempted to withdraw Rs 8000 from HDFC Bank ATM but the transaction was not through and the money has been reaccredited to the account on 13.03.10 18.03.10 Rs 8500.00 withdrawn from branch at 1.06 pm. Entry by 14185 and passing by 35315.

28.04.10 Rs 15000.00 transferred from SB a/c 708 of Baldevpuri Housing Society and Rs 6841.95 transferred from inoperative a/c 6841 at 2:29 pm To SB 4346 entered by 13325 and passed by 35315.

29.04.10 Rs 20000.00 withdrawn cash from the branch at 10:04 am Entry by 13225 and passing by 35315. Surprisingly this only entry which has been passed by 35315 during the whole day.

01.05.10 Rs 30000.00 transferred from SB 708 of Baldevpuri Housing Society to SB 4346. Entry by 13225 and passing by 35315.

Rs 10000 and Rs 5000 withdrawn from HDFC Bank ATM.

03.05.10 Rs 16000.00 cash withdrawn from SB 4346 at the branch at 10:48 am. Entry by 13225 and passing by 35315.

05.05.10 Rs 50000.00 transferred from CA 25 of an inoperative a/c of the college to SB4346 Entry by 35315 and passing by 13225 at 2:49 pm. 11.05.10 Rs 5000.00 and Rs 10000.00 withdrawn from Andhra Bank ATM.

12.05.10 Rs 1000.00 + Rs10000.00 and Rs4000.00 withdrawn from Corporation Bank ATM.

13.05.10 Rs 10000.00 and Rs5000.00 withdrawn from Andhra Bank ATM.

19.05.10 Rs 100000.00 transferred from CA 25 of Vet College a/c at 2:45 pm to SB 4346 Entry by 35315 and passing by 13225.

26.05.10 Rs 15000.00 cash withdrawn from the branch at 11:14 am. Entry by 13225 and passing by 35315.

28.05.10 Rs 100000.00 transferred from CA 25 of Vet College to SB 4346 at 2:16 pm. Entry by 13225 and passing by 35315.

01.06.10 Rs 10000.00 and Rs 5000.00 withdrawn from HDFC Bank ATM.

02.06.10 Rs 15000 withdrawn from Branch at 1:21 pm. Entry by 13225 and passing by 35315.

06.06.10 Rs 10000.00 and Rs 5000.00 withdrawn from Axis Bank ATM.

07.06.10 Rs 5000.00 withdrawn from Axis Bank ATM.

08.06.10 Rs 15000.00 withdrawn from Branch at 3:02 pm. Entry by 35315 and passing by 13225.

12.06.10 Rs 15000.00 withdrawn from Branch at 12:10 p.m. Entry by 13225 and passing by 35315.

14.06.10 Rs 10000.00 and Rs 5000.00 withdrawn from HDFC Bank ATM.

15.06.10 Rs 5000.00 and Rs 10000.00 withdrawn from HDFC Bank ATM.

16.06.10 There is a debit entry of Rs 15000.00 in SB 4346 entry by 13225 which has been cancelled by 38308.

Surprisingly this is the only entry where Roll no. 38308 of Mr. Gyanendra Kumar comes into picture in the whole incident.

Later on Rs 25000.00 withdrawn from the branch at 12:06 p.m. The entry is posted by 13225 and passing by 35315.

Rs 5000.00 and Rs 10000.00 withdrawn from HDFC Bank ATM.

17.06.10 Rs 5000.00 and Rs 10000.00 withdrawn from Axis Bank ATM.

Rs 40000.00 transferred from CA 25 of Vet College to SB 4346 at 12:15 p.m. Entry by 35315 and passing by 13225.

18.06.10 Rs 5000.00 and Rs 10000.00 withdrawn from Axis Bank ATM.

19.06.10 Rs 5000.00 and Rs 10000.00 withdrawn from Andhra Bank ATM.

21.06.10 Rs 5000.00 and Rs 10000.00 withdrawn from Andhra Bank ATM.

22.06.10 Rs 5000.00 and Rs 600.00 withdrawn from Axis Bank ATM.

23.06.10 SB 4346 which was allowed to run with 0 balance and all the above mentioned transactions routed through this account was modified in master by changing the name from Nemi Chand (original account holder) to Nagesh a fictitious name under the password of 35315.

Rs 23.00 and Rs 0.95 debited and the a/c brought to zero balance by 13225 and 35315."

The following points are worth mentioning here:

1. The vouchers for the above transaction are not available along with the vouchers of the date.

2. The application for issue of Insta Card is not available.

3. There is no entry in the ATM card issue register for issuance of Insta Debit card in the above account.

4. The Staff Strength of the branch is as under:

Mr Pramod Mahindar Roll No 35315 Senior Manager Mr Gauri Shankar Roll No 13225 Dy. Manager Mr Gyanendra Kumar Roll No 38308 Asstt Manager Mr Sudhir Saxena Roll No 36622 Clerk Mr R L Yadav Roll No 05992 Cashier Mr H S Bharti Roll No 14185 SCA (Passed away on 09.04.10) Mr Bhagwati Prasad Roll No 26754 Messenger Smt Munni Devi Roll No 20019 Part Time Sweeper.

6. Then he gave details of S.B., account no. 3861 in Chronological order which reads as under:-

"Details of the incident in Chronological order about SB a/c 3861 through which fraudulent transactions have taken place are as under:-

02.07.10 A/c holder of SB a/c 3861 came to the branch with a request letter to close her a/c. The account was closed and proceeds transferred to her father's account as requested. Entry by Clerk Mr. Sudhir Saxena a/c no. 36222 and passing by Asstt Manager Mr. Gyanendra Kumar roll no 38308.

The balance was brought to zero, however, it was not deleted from the master and account allowed to run with 0 balance.

03.07.10 Rs 30000.00 transferred from SB 708 of Baldevpuri Housing Society to SB 3861. Entry by 13225 and passing by 35315.

Insta Debit Card issued by 13225 and 35315.

Rs. 5000.00 and Rs 10000.00 withdrawn from Andhra Bank ATM.

04.07.10 Rs 5000.00 and Rs 10000.00 withdrawn from Andhra Bank ATM.

28.07.10 Overdue deposit 219700125 Rs.............transferred to this a/c by 13225 and 35315.

30.07.10 The following overdue deposits transferred at 09:48 a.m. to this a/c by 13225 and 35315 218500003 Rs3500.00 219500047 Rs4440.00 219400050 Rs3422.00 219400053 Rs808.00 219400173 Rs4693.00 219500094 Rs3224.00 219600070 Rs4073.00 219600073 Rs3879.00 Rs 7000.00 transferred from CA 25 of Vet College at 09:50 a.m. by 35315 and 13225.

01.08.10 Rs 15000.00 withdrawn from IOB ATM.

The footage of this withdrawal is available in the enclosed CD.

04.08.10 The following overdue deposits transferred to this a/c at 09:56 a.m. by 35315 and 13225 510900376 Rs 4622.00 510900379 Rs 3746.00 510900380 Rs 3746.00 05.08.10 Normal interest credited by the system Rs 2973.00 05.08.10 The following SB inoperative accounts transferred to this a/c at 03:01 p.m. by 13225 and 35315.

 
SB 8101  Rs 266.00
 
SB 8212  Rs 1080.00
 
SB 8115  Rs 1211.00
 
SB 6814  Rs 336.00
 
Total        Rs 2893.00
 
06.08.10
 
Rs 5000.00 and Rs 10000.00 withdrawn from Andhra Bank ATM.
 
07.08.10
 
Rs 10000.00 and Rs 5000.00 withdrawn from Andhra Bank ATM.
 
08.08.10
 
Rs 8000.00 withdrawn from HDFC Bank ATM.
 
16.08.10

Overdue deposit 51900360 for Rs 27935.00 transferred to this a/c at 05:25 p.m. by 13225 and 35315.

18.08.10 Rs 15000.00 withdrawn from IOB ATM.

The footage of this withdrawal is available in the enclosed CD.

21.08.10 Rs 5000.00 and Rs7900.00 withdrawn from Corporation Bank ATM.

23.08.10 Rs 67.00 transferred from this a/c and brought the balance of the account to Zero."

7. Making his special own comments, Senior Manager said in the aforesaid letter as under:-

"We wish to add here that all the above frauds can not be committed by any outsider and there is active involvement of a staff member who is well aware of the passwords of other officers.

Incidentally, whenever there is no connectivity in the branch and the branch is moved to some other branch for completion of the transaction Mr. Gyanendra Kumar used to go for the same. Where from he will call the other officers to get their password for second passing/verification of the entries. That is how he comes to know the password of other officers.

The job relating to ATM maintenance, issue and delivery of ATM cards and all work relating to deposits department is assigned to Mr Gyanendra Kumar.

Mr Gyanendra Kumar is found present in side the ATM on both the occasions when money has been withdrawn from the above mentioned SB a/c 3861 from our Bank's ATM as per the recording of CCTV/CD of the same is enclosed for your verification and investigation.

My strong observation is that Mr. Gyanendra Kumar can only be the person behind the above fraudulent transactions.

We are trying to get the footage of the person who has used the ATMs of different Bank's for withdrawing the cash.

Sir, in the light of the above, we request you to kindly get the matter investigated immediately and guide us about further course of action to be initiated at our end."

8. Apparently pursuant to the aforesaid complaint petitioner was placed under suspension by order dated 08.09.2010 in terms of Regulation 12(1) (a) of Regulations 1976 by Deputy General Manager of the Bank in his capacity as Disciplinary Authority.

9. Petitioner by letter dated 18.09.2010 requested disciplinary authority to revoke order of suspension. One D. Madan Singh, Chief Inspector of the Bank posted at Inspection Department, Central Office, Chennai made internal investigation and submitted investigation report dated 21.10.2010. As per Annexures to his report, all the three officers namely Sri Pramod Kumar Mahendra Senior Manager, Gauri Sankar, the then Assistant Manager and Petitioner were responsible and guilty of certain acts and omission. Findings recorded by the aforesaid officer in respect of all the three persons in brief reads as under:-

Pramod Kumar Mahendra Sl. No. Gist of specific findings of Investigating Officer 1

-Sharing of Password

-Non-checking of Transaction Log

-Non-checking of daily vouchers/ Vouchers Register

-Non-tallying of number of vouchers with that of List of Daily Transactions.

-Non-checking of Exceptional Reports (like Accounts operated for the day and Zero Balance, Inoperative accounts operated etc.)

-Lack of effective overall control in ensuring joint custody operations with regard to security items - Insta Debit cards management

-Lack of effective overall control ensuring adherence to systems and procedures at the branch Gauri Shankar Sl. No. Gist of specific findings of Investigating Officer 1

-Sharing of Password

-Checking of SB / CD supplementary not carried out effectively.

-Checking of Day Book not done effectively (amounts transferred from Overdue Deposit accounts)

-Joint custodian functions not carried out with regard to security items - Insta Debit Card management and allowed single officer to handle the portfolio

-Daily vouchers verified but not carried out effectively (it is the function of branch Head) Gyanendra Kumar Sl No. Gist of specific findings of Investigating Officer 1

-Misuse of passwords of other Officials with fraudulent intention (circumstantial evidence)

-putting through various transactions -unauthorized and with no mandate, with fraudulent intention (circumstantial evidence)

-Vouchers not prepared or vouchers prepared but removed there after (circumstantial evidence)

-Handling security items ( insta card Management) under single custody

-Taking insta Debit Cards in the name of other account holders, whose accounts have been closed already, with fraudulent intention (circumstantial evidence)

-Misuse of those cards and cash withdrawn

-Verification of daily voucher (which is the duty of the branch Head).

-Checking of SB supplementary not carried out effectively.

10. Ultimately a charge-sheet dated 20.04.2011 was served upon the petitioner and the allegations in the articles of charges read as under:-

"1. You had fraudulently debited various in-operative SB/CDCC accounts, SB Dormant accounts, Inoperative CDCC a/c No.25, Overdue Deposit accounts and Deposit accounts as detailed in Annexure -1 & 4 without any authority/consent from the respective account holders and credited the proceeds into the closed SB accounts viz. SB No.4346 of Sri Nemichand Sharma (closed on 25.01.2010) and SB a/c No.3861 of Ms. Radha Sharma (closed on 02.07.10) as detailed in Annexure -1 & 4 in order to get unlawful pecuniary gain to the tune of Rs. 4,54,600/-.

2. You had unauthorisedly converted the said Inoperative SB/CDCC accounts, SB Dormant accounts and overdue deposit accounts into operative accounts in order to misappropriate the balances in the accounts by transferring the funds into the closed SB a/cs No. 4346 and No.3861. You had thus transferred an aggregate amount of Rs. 4,70,460.95 from the Inoperative accounts into the closed SB a/cs as detailed in Annexure -1 & 4.

3. While you were allocated the job of ATM and related jobs, you had misused your official position and fraudulently issued insta Debit Card bearing No.4221 3209 0070 3536 to the SB a/c No.4346 of Sri. Nemichand Sharma and No.4221 3209 0217 5840 to the SB a/c No.3861 of Ms. Radha Sharma which were already closed by you with zero balances on 25.01.2010 and 02.07.2010 respectively. You had fraudulently taken the above cards along with PIN mailers and utilized the same for withdrawing the funds so fraudulently transferred into the SB accounts no.4346 and No.4221. To conceal your acts, you had not made any entry in the Debit Card issue register.

4. You had fraudulently and dishonestly withdrawn funds to an aggregate amount of Rs.3,25,100/- through ATMs of various Banks from the SB a/c No.4346 and SB a/c No.3861 on various days as detailed in Annexure-2 & 5 and misappropriated the same.

5. You had dishonestly and fraudulently withdrawn through withdrawals/debit vouchers an amount aggregating to Rs.1,29,500/- from the SB account No.4346 as detailed in Annexure -3 and misappropriated the same.

6. On completion of your fraudulent transactions, you had brought the balances in the SB accounts No.3861 and SB 4346 into "NIL" by fraudulently transferring the balances into GL head P&L code 8518-0-0. You had fraudulently debited Rs. 25.95 in the SB a/c No.4346 and Rs.67.00 in the SB a/c No.3861 on 23.06.10 and 25.08.10 respectively and made the accounts with zero balances in order to conceal your act of misappropriation through these accounts.

7. You had fraudulently changed the name of SB a/c No.4346 of Sri Nemichand Sharma and SB a/c No.3861 of Ms. Radha Sharma as 'Nagesh Kumar' and as 'Finance Officer' respectively to conceal your fraudulent acts.

8. You had on 23.08.2010, fraudulently debited Rs. 60,000/- in the CDCC a/c No. 23 of Income a/c UP PDDU Veterinary University and credited the proceeds into the SB account No.708 of Baldevpuri Housing Society for your benefits.

9. You had fraudulently misused the passwords of Sri Pramod Kumar Mahendra (Roll No.35315), Senior Manager, Sri Gauri Shankar (Roll No.13225), Assistant Manager and Sri H.S. Bharti, SCA of the Branch for posting and passing the said fraudulent transactions mentioned in Annexure 1,3 & 4 in the Computer System.

10. To conceal your acts, you had removed and destroyed withdrawals/debit vouchers relating to the above fraudulent transactions.

You had thus defrauded the Bank and misappropriated the funds of the customers/bank to the tune of Rs.4,54,600/-.

The above articles of charge if proved, will amount to contravention of the following regulations.

1. You have failed to take all possible steps to ensure and protect the interest of the Bank and discharge your duty with utmost integrity and honesty.

2. You have acted otherwise than in your best judgment in the performance of your official duties and in the exercise of the powers conferred on you.

3. You had acted in a manner, which is unbecoming of an officer employee."

11. Since documents referred to in charge-sheet were not supplied, petitioner vide letter dated 13.05.2011 requested to supply documents (33 numbers).

12. Disciplinary authority however required the petitioner to communicate whether he admits or denies the charges. Hence vide letter dated 16.06.2011, petitioner denied all the allegations and reiterated his request for supply of documents. Disciplinary Authority vide letter dated 11.07.2011 appointed Sri R. Sri Niwasan, Senior Manager (C &DAC) Central Office as Inquiry Authority (hereinafter referred to as "I.A."). On the first date of oral hearing i.e. 27.07.2011, I.A., made available to the petitioner some documents but not all.

13. Next date of 22.12.2011 when petitioner requested to supply remaining 23 documents and to defer oral inquiry till documents are made available so that he may prepare his defence. Again vide letter dated 09.01.2012, petitioner requested for supply of documents mentioned in this letter dated 22.12.2011. The Inquiry Officer fixed inquiry for 23.12.2011 on which date since petitioner was not having assistance of another Defence Representative, he could not participate, and oral inquiry was held ex-parte.

14. Disciplinary Authority vide letter dated 13.01.2012 denied supply of any further document, observing that all necessary documents and a copy of investigation report along with enclosures have been handed over to petitioner during initiation of disciplinary proceedings.

15. In the aforesaid ex-parte proceedings Presenting Officer/ Management's witness basically relied on CCTV footage to prove petitioner's involvement in alleged fraudulent transactions. Relevant extract of minutes of the proceedings of inquiry by I.A., dated 23.11.2012 is reproduced as under:-

MWI During my investigation, I observed that two SB accounts were closed at the request of the customers. The accounts were kept with Zero balance. The same were not removed from the master. The two accounts were misused for transferring amounts from various in-operative SB/ CDCC accounts. The transactions were put through using the passwords of Shri Pramod Kumar Mahendra, Roll No. 35315, Senior Manager first line and Shri Gauri Shankar, Roll No. 13225, Asst. Manager of the branch. The amounts thus transferred were withdrawn through ATM of our Bank and other Banks in the Mathura and withdrawing cash at the branch counter.

The ATM insta cards were issued to the closed SB accounts. I depose here below the following points:

(1) The contents and tone of the letter dated 06.09.2010 written by the branch addressed to RO, Jaipur reporting about incident of suspected fraud is construed as Shri P K Mahendra, Senior Manager and Shri Gauri Shankar, Asst. Manager are oblivious of the incidents.

(2) The fact of having shared their passwords by Mr P. K Mahendra and Shri Gauri Shankar to Shri Gyanendra Kumar, Roll No. 38308, Asst. Manager on various dates of reported system connectivity failure establishes the fact that Shri Gyanendra Kumar is in the full knowledge of the passwords of these two officers. This establishes that Shri Gyanendra Kumar has misutilised their passwords to perpetrate the fraud relating to unauthorized debit and credit transactions in the reported accounts. He has unauthorizedly issued INSTA Debit cards to these accounts to which the amounts were credited. By using the ATM cards he has withdrawn cash from ATM of our Bank and other Banks on various dates.

(3) ATM/ INSTA Debit Card issuance etc. were solely attended to by Shri Gyanendra Kumar only. ATM/ INSTA Debit Card issuance Register is not maintained by him properly as per laid down procedure.

(4) There is no control by not checking the transaction log, vouchers, supplementaries etc. by Shri P. K. Mahendra and/ or Shri Gauri Shankar, wherever required. Had they checked the same as required by the Bank they would have observed at the beginning itself or much earlier misuse of their passwords. Failure to do this has emboldened Shri Gyanendra Kumar to continue to perpetrate the fraud over a period of time.

(5) ATM room operations, ATM cash management work etc. are handled by Shri Gyanendra Kumar.

(6) The CC TV footage obtained from HDFC Bank (Exhibit No. 130 of my investigation report) clearly establishes the fact that the amount of Rs. 8000/- was withdrawn by Shri Gyanendra Kumar by misusing Card No. 4221 3209 0217 5840 to the debit of SB account No. 3861 on 08.08.2010 at 06:26 p.m. The INSTA Card Number and the time appearing in the CCTV footage is matching with the details for that transaction in the transaction log of that date. (Exhibit No. 133 of my Investigation Report) and ledger print of SB account No. 3861 (Exhibit No. 77 of my report).

(7) The CCTV footage obtained from this branch ATM (exhibit No. 131 of my report) establishes the fact the amount of Rs. 15,000/- was withdrawn by Card No. 4221 3209 0217 5840 to the debit of SB account No. 3861 on 01.08.2010 at 12:10 PM by Shri Gyanendra Kumar. The details are matching with the transaction log of that day (exhibit No. 126) SB ledger print of account No. 3861- (Exhibit No. 77) and ATM journal print out (Exhibit No. 145).

(8) Shri Gyanendra Kumar was reported sitting at SB counter area which is a partitioned enclosure. This has given free access to him to put through all fraudulent transactions in the system without being observed by anybody. Relative Credit and debit vouchers were not prepared or were removed/ destroyed after the fraudulent transactions were put through and transactions completed.

Apart from the above depositions now made by me which form part of my investigation report and I request you to adopt my whole report pertaining to my findings against Shri Gyanendra Kumar.

Incidentally, I bring to your notice that while I was standing outside the branch area around 12 Noon, I saw a lady going out of the branch and joining Mr. Gyanendra Kumar who was standing nearly 50 meters away from the branch. After I have been called by you to depose as Management Witness I came to know that Shri Gyanendra Kumar was not attending to day for the enquiry and a lady called on the branch and gave a letter about Shri. Gyanendra Kumar not attending enquiry to-day.

16. The next date for oral inquiry was 18.01.2012. Management relied on certain photographs in photo sheet claimed to have been made from CCTV footage, as paper No. ME 80 was specifically shown to Management Representative and it was inquired whether he identify the person in photo sheet as per ME 80, to which, Presenting Officer replied in affirmative. Relevant extract of this part of proceedings dated 18.01.2012 is reproduced as under:-

"DR I am not able to identified the person in the photo sheet as per ME 80, I request IA to show these photos to PO as to whether he is able to identify Mr Gyanendra Kumar. Further the date and time is not available in one of the footages.

IA PO, can you identify these photos and tell me name of the person.

PO Yes Sir, I am able to identify Mr Gyanendra Kumar clearly.

DR It shows that PO is biased.

DR I am showing the photo sheets. I request IA as to whether you are able to identify Mr. Gyanendra Kumar?

IA At the time of evaluation of evidences it will be made known."

17. In respect of documents not supplied to Defence Representative, petitioner specifically made query from Managements witness and reply thereof is part of inquiry proceedings dated 18.01.2012.

DR It is pertinent that the following documents have not been made available to me.

(a) Copy of letter(s) from Vet. College branch to HDFC Bank with regard to obtention of CCTV footage from ATM room of HDFC Bank.

(b) Copy of covering letter from HDFC Bank along with CDs were delivered in person or sent by post to see as to how many CDs / footage were sent by HDFC Bank to branch and who has collected the CDs / footages.

(c) Copy of covering letters from other Banks, of any along with copies of letters to different banks sent by the branch calling for CDs/ footages from them.

MW1 Branch has already written letters to various banks who are having ATMs in Mathura Town. Based on those letters I followed with those banks for obtention of details and CCTV footage. The copies were available with branch records. It is part of my investigation report. Exhibits 143 of ME 80 clearly reveals that the branch had taken up with various banks on 06.09.2010 addressed to Andhra Bank endorsing the copies to Regional Office. Some of the banks have advised that their ATMs are not fixed with CCTV facility. Some of them advised that they could not provide the CCTV footage due to software crash and some of the banks they cannot retrieve at that point of time since CCTV is overwritten after certain period and some of the Banks have received for their reply subsequently. In this I request you to refer my exhibits Nos 142, 143 and 144.

18. Attempt on the part of the Management to show that Gauri Sankar was marked on leave from 1.2.2010 to 09.02.2010 but on Exhibit No. 10 A and 140 of ME 80, there was signature made on 09 February 2010 was highlight, the proceedings are as follows:

"DR Please peruse ME 1 and tell whether Mr Gauri Shankar was present in the branch on 09.02.2010?

MW1 Mr Gauri Shanker was marked leave from 01.02.2010 to 09.02.2010 (9 days Privilege leave) DR Please peruse Exhibit No 10 A and 140 of ME 80 and tell the name of the Officer who has signed these same on 09.02.2010.

MW1 "Mr. Gauri Shankar has signed the voucher register and voucher pad dated 9th of February 2010. But I would like to add that I cannot say the dates on which he had signed the voucher register and voucher."

19. Thereafter a specific question was placed before Management Witness that there was no conclusive proof to implicate petitioner in the alleged fraudulent transaction. The question put to Management Witness and reply given by him is reproduced as under:-

"DR " I put it to you that your investigation does not conclusively prove the involvement of CSO in reported fraudulent activities since no credible evidences have been produced to prove his involvement in the case. Am I right?

MW1 " No. I have given documentary evidence photograph of CCTV footage obtained from HDFC Bank which clearly shows the picture of Mr Gyanendra Kumar and the INSTA card No. at the time of transaction put through. The INSTA Card No. and the time of transaction put through seen from the CCTV footage is clearly matches with the related debit entry with the ledger of SB account No.3861. Both these CCTV colour photo and transaction Log dated 8/8/2010 and SB ledger statement of SB account No.3861 are given as Exhibits to my report"

20. Management Witness in reply to one of the question specifically said, "Further when the CCTV footage photo obtained from HDFC Bank it clearly established that Shri Gyanendra Kumar had misutilised the card. Hence I have not probed further into the matter referred above."

21. Oral inquiry was concluded on 18.01.2012. Presenting Officer submitted his written brief on 27.02.2012 and petitioner submitted written brief on 02.03.2012. Inquiry Report was submitted by I.A., to Disciplinary Authority on 15.03.2012. Disciplinary authority thereafter supplied a copy of inquiry report to petitioner where-against petitioner made representation dated 27.04.2012 and thereafter Disciplinary Authority passed order dated 30.05.2012, holding petitioner guilty and imposing punishment of dismissal and denial of petitioner's full salary during the period of suspension except subsistence allowance already paid. Petitioner's appeal under Regulation 17 was dismissed by the Appellate Authority vide order dated 30.01.2013 and thereafter his review petition was also dismissed by Respondent-4 Reviewing Authority vide order dated 17.05.2013.

22. Sri Manish Kumar Nigam, learned counsel for petitioner contended that here is a case where petitioner has been punished by holding certain charges proved despite the fact that there was no evidence whatsoever and the officials, who were directly responsible and implicated in this case, were Senior Officers and they were protected in a circuitous way by implicating petitioner. He pointed out that all the alleged fraudulent transactions had shown that password of 35315 of Sri Pramod Kumar Mahendra, Senior Manager and 13225 of Sri Gauri Shankar, Deputy Manager were used. In order to protect them, without any evidence to that they shared their password with petitioner, on their bare statements which obviously made to protect themselves, petitioner has been implicated. The only other evidence relied by Bank is so called CCTV Footage of HDFC ATM. In these footage's which were in photo-sheet and made part of inquiry, it was found that the person therein was not at all identifiable and said evidence has been relied only on the statement of Management's Representative that he is able to identify petitioner, but when the same photograph was placed before Inquiry Officer, to see whether anybody is identifiable, Inquiry Officer very conveniently said that he will see it at the time of evaluation of evidence, but thereafter he simply proceeded to believe on the statement of Management's Representative. This CCTV Footage is part of writ petition at page 512 and its colored photograph was also placed before Court for its perusal and it is argued that it shows only a shadow and nobody can identify the person, whose shadow is shown in the photographs. He contended that, therefore, for the fault of Senior Manager and Deputy Manager of the Bank and the acts in which they were found indulged in preliminary inquiry, petitioner has been implicated solely by relying on so called photographs, which did not contain a picture, identifiable, but shows only a blurred shadow and nothing is identifiable therein. He said that suspicion howsoever high may be, but cannot take place of proof, hence, in view of law laid down by Constitution Bench in Union of India vs. H.C. Goel AIR 1964 SC 364, the order of punishment is patently illegal and liable to be set aside.

23. Sri Manish Kumar Nigam, learned counsel for petitioner also argued that a number of documents requested by petitioner to be supplied for his defence, which were found relevant, have not been supplied to him and thus also, the entire disciplinary proceedings are vitiated in law. He drew our attention to Annexure 10-A of writ petition, which is letter dated 22.12.2011, containing demand of 24 documents by petitioner from Inquiry Officer. Again, petitioner made a complaint by letter dated 09.01.2012 with respect to non-supply of documents. Disciplinary Authority vide letter dated 13.01.2012 said :

"All the necessary documents/copies of documents and copy of investigation report along with all annexures have already been handed over to you during initiation of disciplinary proceedings."

24. It is thus said that a vague reply was given and all the documents which were found necessary were not supplied and this vitiated the entire disciplinary proceedings.

25. Learned counsel appearing for Bank, on the contrary, submitted that enquiry has been conducted after giving due opportunity of hearing and on the basis of finding recorded by Inquiry Officer petitioner has been punished, hence, in judicial review this Court may not interfere with the findings recorded by Inquiry Officer and writ petition must be dismissed.

26. In order to examine the question, whether charges have been found proved against petitioner on some evidence or it is a case of no evidence, it would be appropriate to have a glance of inquiry report, which is part of paper book on pages 300 to 362.

27. Record shows that for the first time, complaint of alleged unauthorized transaction in respect of SB Account no.708 was brought to notice of Branch Manager/Senior Manager on 25.08.2010, but he reported this matter only on 06.09.2010 by sending letter (Exhibit 143) and also reporting matter to Chief Regional Manager, Regional Office, Jaipur (Exhibit 141). It is also evident that sole Management's witness examined was Sri D. Madan Singh, Chief Inspector, Inspection Department, Central Office and none else. When he was asked the question as to how he submitted his preliminary inquiry report and drew conclusion that Senior Manager, Sri Pramod Kumar Mahendra, Deputy Manager, Sri Gauri Shankar, shared their passwords to petitioner, he (Management's Witness) deposed that he concluded by going through the contents and tone of letter dated 06.09.2010, which was sent by Senior Manager/ Branch Manager to Chief Regional Manager, Jaipur. Thus, it is evident that to prove a pure question of fact, whether Senior Manager Sri Pramod Kumar Mahendra and Deputy Manager, Sri Gauri Shankar, shared their passwords with petitioner, no evidence was placed before Inquiry Officer by producing those persons who claimed to have shared their passwords with petitioner or by placing any material to show that they have actually shared.

28. Senior Manager, Sri Pramod Kumar Mahendra himself was in the category of accused/guilty person, since, transactions were made using his own password. While shirking his responsibility and shifting to petitioner, in his letter dated 06.09.2010, which he sent to Chief Regional Manager, he took defence that his password was shared with petitioner, but could give no evidence in this regard as to when said password was shared, particularly, when sharing of password was specifically against the instructions of Bank.

29. Similarly, in respect of Sri Gauri Shankar, Deputy Manager, the contents of letter dated 06.09.2010, which was not proved by author by appearing in witness box before Inquiry Officer, were taken to be true and it was assumed that these two officers had shared their passwords with petitioner. This is clearly a finding based on conjecture, surmises and hearsay and not on credible evidence.

30. Inquiry Officer while evaluating the evidence and recording his findings has simply recorded his conclusions that Management's Witness Sri D. Madan Singh and the documents establish that CSO misused passwords of Sri Pramod Kumar Mahendra, Senior Manager and Sri Gauri Shankar, Deputy Manager and unauthorizedly transferred funds, but how he could use the passwords of these two officers when sharing of passwords taken place has not been discussed at all. In fact there is not a whisper on this aspect in inquiry report and findings in fact are nothing, but a sheer conclusion to hold the charge proved without discussing as to how the charge was proved. We may reproduce the relevant findings of Inquiry Officer on this aspect given by him under the heading "Evaluation of Evidences and Findings of I.A." as under :

"Deposition of MW1 corroborated with ME 8, ME 14, ME 20 to 35, 17 to 19, ME 41, 44 to 52 and ME 80, establishes that CSO, knowing fully well that the said SB account was not removed from the SB master, he had on various dates misused the passwords of Sri. Pramod Kumar Mahendra, Roll No. 35315, the then Senior Manager I Line of the branch and Sri Gauri Shankar, Roll No. 13225, the then Assistant Manager, unauthorizedly and fraudulently transferred funds to the tune of Rs. 3,57,395/95 to the closed SB a/c No. 4346 from various in-operative SB/CDCC accounts and SB Dormant accounts as detailed in Annexure I of the Memorandum of Allegation and Articles of Charge dated 20.04.2011. While doing so, he had anauthorisedly and fraudulently converted the inoperative Accounts into operative accounts to facilitate fraudulent transfer of funds from inoperative SB/CDCC accounts and SB dormant accounts. To conceal his acts, he had destroyed the debit/credit vouchers relating to the transactions.

Deposition of MW 1 corroborated with ME 9, ME 15, ME 42 and ME 80 establishes that SB a/c No.3861 of Smt. Radha Sharma held at the Branch was closed on 02.07.2010 as per her request. Sri. Sudhir Kumar Saxena, Clerk of the branch posted the withdrawal form dated 02.07.2010 for Rs. 2,17,383/- in his LOGIN ID 36222 and CSO passed it in his LOGIN ID 38308. The balance in the account became Zero and CSO as the passing officer had not removed the account from the master.

Deposition of MW 1 corroborated with ME 15,17,19,36 to 39, ME 63/1 to 63/3, 65, 66 and ME 80 establishes that CSO knowing fully well that the said SB account was not removed from the SB master misused the passwords of Sri. Pramod Kumar Mahendra and Sri Gauri Shankar, CSO had on various dates anauthorizedly and fraudulently debited various inoperative SB accounts, inoperative CDCC a/c no.25, overdue deposit accounts and deposit accounts and credited the proceeds totaling Rs. 1,13,065/- into the closed SB a/c no. 3861 as detailed in Annexure 4 of the Memorandum of Allegation and Articles of charge dated 20.04.2011. While doing so, he had without authority converted the inoperative SB/CDCC accounts as operative accounts to facilitate transfer of funds to the closed SB a/c No.3861. To conceal his fraudulent acts, he had destroyed the debit/credit vouchers relating to the transactions." (emphasis added)

31. The absence of evidence pointed out by petitioner has also been discarded without giving any finding as to how petitioner could get passwords of these two Senior Officers, which were used, ignoring the fact that those two Senior Officers, while implicating petitioner, were attempting to clear themselves from charge of fraudulent transfer of funds. The findings of Inquiry Officer in this regard while rejecting lack of evidence pointed out by petitioner are as under:-

"Contention of the defence is not acceptable because deposition of MW 1 corroborated with Exhibit 141 of ME 80 establishes that on 20.08.2010 a representative of SB account No. 708 of Baldevpuri Housing Society visited the branch and requested for effecting change of authorized signatories of the Society in the Bank's records. CSO on 23.08.2010, voluntarily took the papers given by representative of Bhaldevpuri Housing Society for doing the needful. On 25.08.2010, representative of SB 708 again visited the branch for updating the entries in the pass book and pointed out certain entries which did not relate to them.

On verification of lots, Senior Manager found that the entries were posted and passed by using the password of Sri Gauri Shankar and Senior Manager respectively. On further verification found that two ATM cards were misused for withdrawing cash besides direct withdrawal of cash at the branch. CSO was in charge of all ATM related jobs. CCTV footage of ATM of our Veterinary college branch, Mathura revealed the presence of CSO at the ATM.

MW1 (Investigator) collected CCTV footage of HDFC Bank ATM which confirmed the withdrawal of Rs.8,000/- by CSO on 08.08.2010 through INSTA Debit Card No.4221320902175840 issued for closed SB a/c No. 3861. Thus it was established that CSO had committed the fraudulent acts by misusing the passwords of the then Senior Manager and other staff members.

The contention of the defence that CSO had used his own passwords to make zero balances while closing the SB accounts 4346 & 3861, which itself proves the clean intentions and innocence of CSO is not acceptable because closing of these SB. Accounts were genuine transactions. Hence CSO used his own password.

With regard to removal of Zero balances from the master defence contended that the CSO had followed the existing practice of the branch, is not acceptable because as per Book of instructions, when the account is brought to Zero, the same has to be removed from the master simultaneously and any deviation from the systems and procedure is a violation.

With regard to contention of the defence that it is possible that on 13.02.2010, when reported fraudulent transactions took place, Mr Mahendra had come to the branch and worked but intentionally marked his leave in the Attendance Register to mislead the investigation. The contention of the defence is not acceptable because MW1 after perusing the attendance register deposed that Mr. Pramod Kumar Mahendra was on casual leave. Hence the argument of defence does not merit any consideration.

With regard to defence contention that Mr. Gauri Shankar (Asst. Manager) was on leave from 01.02.2010 to 09.02.2010. But the exhibit 10A and 140 of ME 80 reveals that voucher Register and voucher pad dated 09.02.2010 were signed by him. The contention of the defence is not acceptable because vouchers dated 09.02.2010 was to be stitched by the drafty of the branch and submitted for verification and Mr. Gauri Shankar who joined the branch on 10.02.2010 (Exhibit 16 A of ME 80) and signed the voucher pad.

Defence contended that to facilitate tampering and destroying the records and vouchers without anyone noticing the same, CSO was deputed to other branch during the said period. Contention of defence is not acceptable because the argument of defence is a conjecture and it does not merit consideration.

Defence during cross examination asked MW 1 as to how he concluded that Sri. Pramod Kumar Mahendra and Sri Gauri Shankar shared their password with CSO. MW 1 deposed that he concluded by going through the content and tone of the letter dated 06.09.2010 written by the branch (Exhibit No. 141- of ME 80) addressed to CRM, Jaipur.

Defence during cross examination asked MW 1 as to how MW 1 concluded that Sri Pramod Kumar Mahendra and Sri Gauri Shankar's intention were not fraudulent. MW 1 deposed that he concluded by going through the content and tone of the letter dated 06.09.2010 written by the branch (Exhibit No.141 of ME 80) addressed to CRM, Jaipur.

Defence during cross examination quoted that in the investigation report (ME 80) the main circumstantial evidence is stated to be ATM Footage. On page No. 7 under serial No. 2, on 01.08.2010 cash was withdrawn from IOB ATM at 12.10 P.M whereas the transaction timings on page No. 22 of Investigation Report shows that the same is carried out at 11.46 A.M. Like Wise on page No. 7 serial number 3 on 18.08.2010, cash was withdrawn from IOB ATM at 03.39 P.M. whereas the time of the transaction is shown as 3.14 P.M. MW 1 deposed that it was ascertained that the clock setting for the CBS system used in the branch and clock setting in the ATM machine were different in most of the cases on different occasions.

The contention of the defence that investigation official (MW 1) had miserably failed to do justice to investigation and his report shows favoritism towards the actual suspects and prejudice towards the CSO is not acceptable because the argument of defence is a conjecture and it does not merit consideration.

It is thus established that CSO had unauthorizedly converted the said inoperative SB/CDCC accounts, SB Dormant accounts and overdue accounts into operative accounts by transferring funds into the closed SB accounts No. 4346 and 3861 and transferred an aggregate amount of Rs. 4,70,460/95 (Rs. 3,57,395/95 plus Rs. 1,13,065/00) and got an unlawful pecuniary gain to the tune of Rs. 4,54,600/- (Rs. 1,10,900+2,14,200+1,29,500)." (emphasis added)

32. Passing of documents or vouchers by various authorities was not disputed. Even this could not be explained as to how documents were signed by Sri Gauri Shankar on 09.02.2010, when he claimed to be on leave from 01.02.2010 to 09.02.2010. Even the attendance of Senior Manager was not found regular and when this fact was specifically confronted to the sole Management's Witness, he replied, "I can't say". Even this was pointed out that, when reported transaction on 13.02.2010 was held, Senior Manager, Sri Pramod Kumar Mahendra had come to Branch and worked and marked his leave in Attendance Register to mislead investigation but sole Management's Witness says that Senior Manager has taken leave as per attendance and beyond that he cannot say anything. These questions and answers which are mentioned in inquiry report are reproduced as under:-

DR I am putting it you that Pramod Mahendra signing / marking his attendance register as per his convenience and choice and hiding the facts from RO and wrongly reporting the leave record, am I right?

MW-1 I cannot say DR I put it to you that is it not possible that on 13.02.2010 when reported fraudulent transaction took place Mr. P K Mahendra had come to the branch and worked but intentionally marked his leave in the Attendance Register to mislead the investigation.

MW-1 As per attendance he had taken CL, Beyond this I cannot say.

(emphasis added)

33. Learned counsel appearing for Bank submitted that CCTV Footage in photo-sheet was a glaring evidence against petitioner and in that view of the matter, his guilt was rightly proved, hence, it is not a fit case where the Court should interfere. We find from record that only still colour photograph was produced in inquiry. In fact petitioner wanted to examine original Video C.D., but this request was rejected. In inquiry report, from page 327, this fact is evident and we reproduce the same :

"This laid down procedure was not followed in the enquiry against the CSO because only the still color photograph have been provided to defence side but opportunity for verification from original, i.e. Video CD was not given and it was objected by during the enquiry proceedings on 18.01.2012 (page- 12), which is reproduced as under:-

DR Before cross examines MW-1, I request IA not to allow introduction of the following documents / records. First is PO had introduced as ME 80 on 23.12.2011 which is photo sheet of ATMs. We should not allow the same to be introduced since the source of photo sheet is not evident. The original CDs have not been given and the same is not authenticated exhibit.

IA PO, what do you have to say?

PO The photo sheets are part of the investigation report (i.e.) ME 80. This Report is relevant document for this enquiry. The copy of the investigation report with annexure have been already handed over to CSO during Preliminary enquiry which was held on 27.07.2011 and it is already on record.

IA This photo sheets are relevant documents of investigation report and it is on record and I have already allowed this document as ME 80. Request of DR is disallowed."

(emphasis added)

34. On the question that from photograph none was identifiable and even there was a difference of timing etc, Inquiry Officer has discarded the discrepancy pointed out by petitioner only on the ground that sole Management's Witness has deposed that evidence given by him establishes petitioner's guilt and, therefore, charge stands proved. We may reproduce the relevant findings of Inquiry Officer in this regard, contained on pages 331-332 as under :

"Contention of the defence is not acceptable because MW1 deposed in the inquiry that he had given documentary evidence of photograph of CCTV footage obtained from HDFC bank which clearly establishes the picture of Shri Gyanendra Kumar and INSTA Card No. 4221 3209 0217 5840 at the time of transaction put through. The INSTA, Card Number and the time of transaction put through is seen from the CCTV footage clearly matches with the related debit entry with the ledger of SB account no. 3861. CCTV Colour photo and transaction log dated 08.08.2010 and SB Ledger statement no. 3861 are given as exhibits to his investigation Report. Further MW 1 deposed that with regard to time and date the CCTV system installed in our branch ATM is not programmed to catch the date and time. Regarding the source, it is taken from CCTV footage of the branch ATM and compared with ATM journal printout (Exhibit No. 145 of ME 80) and transaction log dated 01.08.2010. Evidences available on record (ME 6) establishes that the CSO was maintaining the register and delivering the Cards to Customers. ME 4 and ME 5 (office Order for supervisory staff establishes that the CSO was allotted all jobs related to ATM Cards, ATM Cash Management and tally of ATM etc. MW-1 further deposed (page No. 18 of the enquiry proceedings) that many columns were left blank in the INSTA card debit register. Many columns were left blank. Acknowledgment not obtained from the account holders to whom the cards were issued. In many cases the initials of CSO who was maintaining the Register (ME 6) were not affixed. With regard to authenticity and genuineness of the documents, it is established form Exhibits No. 132 of ME 80, a letter received from HDFC Bank vide their letter dated 21.09.2010 stating that "With reference to your letter dated 06.09.2010 requesting us to provide CCTV footage of various dates of our ATM at Civil Lines. We wish to advise that the recordings are available for the months of July and August '10 i.e. accordingly date requested from your list is available for 08.08.2010 only, soft copy of which is provided as per detail as mentioned below". (emphasis added)

35. In fact inquiry report though apparently is detailed one noticing the contention of Management's Representative and the defence, but when it proceeds to record its alleged assessment of evidence and finding, we find that Inquiry Officer has simply observed that Management's sole witness has deposed against petitioner and submitted preliminary inquiry report finding petitioner guilty, therefore, charge stands proved. It is also evident that except ATM CCTV Footage of HDFC Bank, no other CCTV Footage of different Banks' ATM were either collected by Bank or made part of inquiry proceedings as evidence.

36. Therefore, two primary evidences, which have been applied to hold all the charges proved against petitioner, are :

(i) Sharing of passwords of Sri Pramod Kumar Mahendra, Senior Manager and Sri Gauri Shakar, Deputy Manager by petitioner.

(ii) Still photograph of HDFC ATM.

37. As we have already noticed, the allegation of sharing of password by Senior Officers with petitioner was neither proved by producing those persons and allowing their cross-examination by petitioner, nor any other material was placed before Inquiry Officer to prove that passwords were actually shared. It is evident from record that sharing of passwords was prohibited as per instructions of Bank and that is why in the preliminary inquiry report even these two Senior Officers were held guilty, but relying on their statements, which they made obviously to absolve themselves and to implicate petitioner, and that too ex parte, findings have been recorded against petitioner. In these circumstances, we have no hesitation in holding that these findings are wholly without any evidence whatsoever.

38. So far as still color photographs of CCTV Footage is concerned, as we have already said that the same is absolutely blurred, show a mere shadow and nothing is identifiable. These photographs during the course of argument were placed before learned counsel for Bank and he was asked whether anybody is identifiable therefrom or not, to which no reply was given. We were ready to give an opportunity to produce any Officer of the Bank to make a statement before this Court that someone is identifiable from said photographs, but he frankly said that photographs are absolutely blurred and contains only shadow figure and nothing is clear and identifiable therein, hence there is no need to call any officer of the Bank.

39. In this backdrop, we are constrained to observe that in a departmental inquiry though law is well settled that no person can be punished unless the charge is proved by adducing some evidence, still here petitioner has been punished by simply ignoring this golden rule. A suspicion howsoever high may be, cannot partake place of proof. A Constitution Bench in Union of India vs. H.C. Goel (supra) said :

"..... mere suspicion should not be allowed to take the place of proof even in domestic enquiries. It may be that the technical rules which govern criminal trials in courts may not necessarily apply to disciplinary proceedings, but nevertheless, the principle that in punishing the guilty scrupulous care must be taken to see that the innocent are not punished, applies as much to regular criminal trials as to disciplinary enquiries held under the statutory rules."

40. At this stage, learned counsel appearing for Bank submitted that this Court should not look into evidence as it will amount to sitting in appeal over the findings recorded by Disciplinary Authority and it is beyond the scope of judicial review.

41. The submission partly is correct, but ignores the basic principle that even in departmental inquiry, no person can be punished unless a charge constituting misconduct, is proved against him. Such finding of a guilt must be based on some evidence and that too not fanciful, imaginary but substantial evidence. It is no doubt true that in cases arising out of disciplinary proceedings culminating in punishment of an employee, scope of judicial review is somewhat restricted in the sense that it is a decision making process which is up for judicial review and not the decision itself. The Court does not sit in appeal. If the procedure prescribed is followed strictly in accordance with rules and delinquent employee has been given adequate opportunity of defence; disciplinary authority by assessing record has reached a conclusion which a person of ordinary prudence in a given set of circumstances may arrive, this Court shall not interfere with the order of punishment, if any, unless it is shown that the same is without jurisdiction or is otherwise bad on account of mala fide etc., or perverse since there is no credible or admissible evidence and finding is based on conjectures and surmises.

42. A person cannot be denied his right to earn livelihood enshrined under Article 226 of the Constitution of India unless he has been given adequate opportunity of hearing and the conclusion drawn by authorities is one which is probable and permissible from bare perusal of documents and not otherwise.

43. The scope of judicial review in such matters is well settled. It travels in a narrow sphere. It is confined to the extent of decision making process. It would not allow a Court to appreciate decision itself unless the decision is vitiated in law on account of mala fide, bias or based on no evidence at all. The authorities exercising quasi judicial functions are not Courts. They are not bound by principles of evidence yet certain basic principles will have to be observed which may dispel a complaint against fairness, impartiality and pre determination of mind on the part of the employer.

44. A Constitution Bench in State of Mysore Vs. Shivabasappa AIR 1963 SC 375, in para 3 of the judgment held:

"Tribunals exercising quasi judicial functions are not Courts and that therefore they are not bound to follow the procedure prescribed for trial of actions in Courts nor are they bound by strict rules of evidence. They can, unlike Courts, obtain all information material for the points under enquiry from all sources, and through all channels, without being fettered by rules and procedure which govern proceedings in Court. The only obligation which the law casts on them is that they should not act on any information which they may receive unless they put it to the party against whom it is to be used and give him a fair opportunity to explain it." (emphasis added)

45. In the matter of departmental enquiry, what is the scope of judicial review, has been considered in State of Andra Pradesh and others vs. S. Sree Rama Rao AIR 1963 SC 1723, and in para 7, Court has said:

"There is no warrant for the view expressed by the High Court that in considering whether a public officer is guilty of the misconduct charged against him, the rule followed in criminal trials that an offence is not established unless proved by evidence beyond reasonable doubt to the satisfaction of the Court, must be applied, and if that rule be not applied, the High Court in a petition under Article 226 of the Constitution is competent to declare the order of the authorities holding a departmental enquiry invalid. The High Court is not constituted in a proceeding under Article 226 of the Constitution is competent to declare the order of the authorities holding a departmental enquiry invalid. The High Court is not constituted in a proceeding under Article 226 of the Constitution a Court of appeal over the decision of the authorities holding a departmental enquiry against a public servant: it is concerned to determine whether the enquiry is held by an authority competent in that behalf, and according to the procedure prescribed in that behalf, and whether the rules of natural justice are not violated. Where there is some evidence, which the authority entrusted with the duty to hold the enquiry has accepted and which evidence may reasonably support the conclusion that delinquent officer is guilty of the charge, it is not the function of the High Court in a petition for a writ under Article 226 to review the evidence and to arrive at an independent finding on the evidence. The High Court may undoubtedly interfere where the departmental authorities have held the proceedings against the delinquent in a manner inconsistent with the rules of natural justice or in violation of the statutory rules prescribing the mode of enquiry or where the authorities have disabled themselves from reaching a fair decision by some considerations extraneous to the evidence and the merits of the case or by allowing themselves to be influenced by irrelevant considerations or where the conclusion on the very fact of it is so wholly arbitrary and capricious that no reasonable person could ever have arrived at that conclusion, or on similar grounds, But the departmental authorities are, if the enquiry is otherwise properly held, the sole judges of facts and if there be some legal evidence on which their findings can be based, the adequacy or reliability of that evidence is not a matter which can be permitted to be canvassed before the High Court in a proceeding for a writ under Article 226 of the Constitution." (emphasis added)

46. In State of Orissa Vs. Murlidhar, AIR 1963 SC 404, the Court said:

"Whether or not the evidence on which the Tribunal relied was satisfactory and sufficient for justifying its conclusion would not fall to be considered in a writ petition. . . . . ."

47. In State of Madras vs. G. Sundaram AIR 1965 SC 1103, the Court relying on its earlier decision in Union of India Vs. H.C. Goel (supra) said:

"It is therefore clear that the High Court was not competent to consider the question whether the evidence before the Tribunal and the government was insufficient or unreliable to establish the charge against the respondent. It could have considered only the fact whether there was any evidence at all which, if believed by the Tribunal, would establish the charge against the respondent. Adequacy of that evidence to sustain the charge is not a question before the High Court when exercising its jurisdiction under Article 226 of the Constitution. . . . . ." (Para 9) (emphasis added)

48. In Bareilly Electricity Supply Company Ltd. Vs. Workmen and Ors. 1971(2) SCC 617, Court held that the procedure prescribed in the Evidence Act is not applicable in departmental proceedings and the only requirement is that the evidence should be collected by giving due opportunity to the delinquent employee as well. Something, which is not a legal evidence may not be acted upon unless it is admitted in departmental proceedings by the person competent to speak about them and is subjected to cross-examination. The relevant observations are as under:

"But the application of principal of natural justice does not imply that what is not evidence can be acted upon. On the other hand what it means is that no material can be relied upon to establish a contested fact which are not spoken to by persons who are competent to speak about them and are subjected to cross-examination by the party against whom they are sought to be used." (para 14) (emphasis added)

49. In Union of India Vs. Sardar Bahadur, 1972 (4) SCC 618, the Court in para 15 of the judgment, said:

"A disciplinary proceeding is not a criminal trial. The standard proof required is that of preponderance of probability and not proof beyond reasonable doubt. If the interference that lender was a person likely to have official dealings with the respondent was one which a reasonable person would draw from the proved facts of the case, the High Court cannot sit as a court of appeal over a decision based on it. . . . . If the enquiry has been properly held the question of adequacy or reliability of the evidence cannot be canvassed before the High Court. A finding cannot be characterised as perverse or unsupported by any relevant materials, if it was a reasonable inference from proved facts." (emphasis added)

50. In the case of State of Haryana and another vs. Rattan Singh AIR 1977 SC 1512, certain passengers were found to have travelled in the bus without tickets as a result whereof the employee, who was the Conductor of the bus, was charge-sheeted. Employer on the basis of statements of the Flying Squad held the charge proved. Employee challenged order of punishment on the ground that passengers are said to have travelled without ticket were not examined and in the absence thereof the entire evidence is hearsay. Court rejecting such contention, held :

"It is well settled that in a domestic enquiry the strict and sophisticated rules of evidence under the Indian Evidence Act may not apply. All materials which are logically probative for a prudent mind and are permissible. There is no allergy to hearsay evidence provided it has reasonable nexus and credibility. It is true that departmental authorities and administrative tribunals must be careful in evaluating such material and should not glibly swallow what is strictly speaking not relevant under the Indian Evidence Act. For this proposition it is not necessary to cite decisions nor text books, although we have been taken through case law and other authorities by counsel on both sides. The essence of a judicial approach is objectivity, exclusion of extraneous materials or considerations and observance of rules of natural justice. Of course, fair play is the basis and if perversity or arbitrariness, bias or surrender of independence of judgment vitiate the conclusions reached, such finding, even though of a domestic tribunal, cannot be held good. However, the courts below misdirected themselves, perhaps in insisting that passengers who had come in and gone out should be chased and brought before the tribunal before a valid finding could be recorded. The ''residuum' rule to which counsel for the respondent referred, based upon certain passages from American Jurisprudence does not go to that extent nor does the passage from Halbsbury insist on such rigid requirement. The simple point is, was there some evidence or was there no evidence-not in the sense of the technical rules governing regular court proceedings but in a fair commonsense way as men of understanding and worldly wisdom will accept. Viewed in this way, sufficiency of evidence in proof of the finding by a domestic tribunal is beyond scrutiny. Absence of any evidence in support of a finding is certainly available for the court to look into because it amounts to an error of law apparent on the record."(para 4) (emphasis added)

51. In Union of India vs. Panma Nanda (1989) 2 SCC 177, in para 27, Court said:

"The Tribunal cannot interfere with the findings of the inquiry officer or competent authority where they are not arbitrary or utterly perverse. . . . . ."

52. In B.C. Chaturvedi Vs. Union of India, 1995(6) SCC 749, reiterating the principles of judicial review in disciplinary proceedings, Court held in para 12 as under:

"Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. Power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the eye of the court. When an inquiry is conducted on charges of misconduct by a public servant, the Court/Tribunal is concerned to determine whether the inquiry was held by a competent officer or whether rules of natural justice are complied with. Whether the findings or conclusions are based on some evidence, the authority entrusted with the power to hold inquiry has jurisdiction, power and authority to reach a finding of fact or conclusion. But that finding must be based on some evidence. Neither the technical rules of Evidence Act nor of proof of fact or evidence as defined therein, apply to disciplinary proceeding. When the authority accepts that evidence and conclusion receives support therefrom, the disciplinary authority is entitled to hold that the delinquent officer is guilty of the charge. The Court/Tribunal in its power of judicial review does not act as appellate authority to reappreciate the evidence and to arrive at its own independent findings on the evidence. The Court/Tribunal may interfere where the authority held the proceedings against the delinquent officer in a manner inconsistent with the rules of natural justice or in violation of statutory rules prescribing the mode of inquiry or where the conclusion or finding reached by the disciplinary authority is based on no evidence. If the conclusion or finding be such as no reasonable person would have ever reached, the Court/Tribunal may interfere with the conclusion or the finding, and mould the relief so as to make it appropriate to the facts of each case." (para 12) (emphasis added)

53. In R.S. Saini Vs. State of Punjab, 1999(8) SCC 90, Court held that standard of proof required in disciplinary proceedings is that of preponderance of probability where there are some relevant material which the authority has accepted and which material may reasonably support the conclusion that the officer is guilty. It is not the function of the High Court to review the material and to arrive at its own independent finding. It also held if the enquiry has been properly held, the question of adequacy or reliability of the evidence cannot be canvassed before the Court. This has been followed in Lalit Popli Vs. Canera Bank and others 2003(3) SCC 583 (Para 16-19)

54. The same view has been followed by Court in High Court of Judicature at Bombay Vs. Shashikant S. Patil AIR 2000 SC 22, wherein Court has held :

"Interference with the decision of departmental authorities can be permitted, while exercising jurisdiction under Article 226 of the Constitution if such authority had held proceedings in violation of the principles of natural justice or in violation of statutory regulations prescribing the mode of such inquiry or if the decision of the authority is vitiated by considerations extraneous to the evidence and merits of the case, or if the conclusion made by the authority, on the very face of it, is wholly arbitrary or capricious that no reasonable person could have arrived at such a conclusion, or grounds very similar to the above. But we cannot overlook that the departmental authority, (in this case the Disciplinary Committee of the High Court) is the sole judge of the facts, if the inquiry has been properly conducted. The settled legal position is that if there is some legal evidence on which the findings can be based, then adequacy or even reliability of that evidence is not a matter for canvassing before the High Court in a writ petition filed before Article 226 of the Constitution." (para 16) (emphasis added)

55. In Syed Rahimuddin Vs. Director General, CSIR 2001 (9) SCC 575, Court observed :

"It is well settled that a conclusion or a finding of fact arrived at in a disciplinary enquiry can be interfered with by the court only when there are no materials for the said conclusion, or that on the materials, the conclusion cannot be that of a reasonable man." (para 5)

56. In Sher Bahadur Vs. Union of India 2002 (7) SCC 142, the order of punishment was challenged on the ground of lack of sufficiency of evidence. Court explained that the expression sufficiency of evidence postulates existence of some evidence which links the charged officer with the misconduct alleged against him and it is not the adequacy of the evidence.

57. In Govt. of A.P. And others vs. Mohd. Nasrullah Khan (2006) 2 SCC 373, Court has reiterated scope of judicial review as confined to correct the errors of law or procedural error if resulting in manifest miscarriage and justice or violation of principles of natural justice. In para 7, Court held:

"By now it is a well established principle of law that the High Court exercising power of judicial review under Article 226 of the Constitution does not act as an Appellate Authority. Its jurisdiction is circumscribed and confined to correct errors of law or procedural error if any resulting in manifest miscarriage of justice or violation of principles of natural justice.

Judicial review is not akin to adjudication on merit by appreciating the evidence as an Appellate Authority." (Para 7)

58. In State Bank of India and others Vs. Ramesh Dinkar Punde, 2006(7) SCC 212 the decision in Mohd. Nasrullah Khan (supra) was followed and Court said that High Court cannot reappreciate the evidence by acting as a Court of appeal.

59. A Division Bench of this Court consisting of myself and Hon'ble S.R. Alam, J., (as His Lordship then was), in Sarvesh Kumar Sharma Vs. Nuclear Power Corporation of India Ltd. & Anr. 2006(2) ESC 1153 has considered various authorities on the subject and summarized certain general principles emerging from various authorities as under:

"(1) The Tribunal exercising quasi judicial functions neither bound to follow the procedure prescribed for trial of actions in Courts nor bound by the strict rules of evidence.

(2) They may obtain all information material for the points under enquiry and act upon the same provided it is brought to the notice of the party and fair opportunity is afforded to explain.

(3) The judicial enquiry is to determine whether the authority holding enquiry is competent, and whether the procedure prescribed is in accordance with the principle of natural justice (4) There should exist some evidence accepted by the competent authority which may reasonably support the contention about the guilt of the officer. Adequacy or reliability of the evidence can not be looked into by the Court.

(5) The departmental authorities are the sole judges of facts and if there be some legal evidence on which their findings can be based, the adequacy or reliability of that evidence is not a matter which can be permitted to be canvassed before the Court.

(6) There is no allergy to hear-se evidence provided it has reasonable nexus and credibility. All materials which are logically probative for a prudent mind are permissible.

(7) The essence of a judicial approach is objectivity, exclusion of extraneous materials or considerations and observance of rules of natural justice.

(8) It is not necessary that the Disciplinary authority should discuss material in detail and contest the conclusions of the Inquiry Office.

(9) The judicial review is extended only when there is no evidence or the conclusion or finding be such as no reasonable person would have ever reached on the basis of the material available."

60. The above exposition of law and discussion makes it clear that in the present case Bank has acted in a very strange manner. It cannot be doubted that charges are very serious and whosoever are guilty, must be punished severely, but that does not mean that anyone can be made an escapegoat. Punishment on the charges levelled against petitioner had to first satisfy the legal requirement of proof. It has to be based on some evidence and that too acceptable i.e. admissible in law. In a case where two senior Officers' passwords, which are supposed to be kept secret and not to be disclosed to anyone, have been used and they very conveniently took a defence that they shared passwords with petitioner and taking their defence on the face of it to be sacrosanct without any evidence to prove this sharing, petitioner has been held guilty, it is nothing but a case of punishment based on a finding, which is not proved by any evidence.

61. Similarly, another so called evidence i.e. still colour photographs of HDFC ATM have been considered, which, as a matter of fact, are absolutely unclear and unidentifiable. Still on the statement of sole Management's Witness and that too a person, who conducted preliminary inquiry and submitted inspection report holding all three i.e. two Senior Officers and petitioner guilty, findings have been recorded by Inquiry Officer against petitioner. Hence, we have no hesitation in holding that the findings of guilt are not based on evidence, hence this Court must interfere as an employee cannot be allowed to suffer on a charge which is not found proved on any evidence.

62. In view of above, writ petition is allowed. Impugned orders dated 30.05.2012, 30.01.2013 and 17.05.2013 are hereby set aside. Petitioner shall be entitled to all consequential benefits.

Order Date :- 21.5.2018 Swati/AKN/AK

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